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Volume 39, Issue 8 — August 2009


Information Access--Surveying the Current Legal Landscape of Federal Right-to-Know Laws

by David C. Vladeck

In this new age of environmental law, scholars, advocates, policy makers, journalists, and other interested members of the public can gain access to and harness information about our environment through federal right-to-know laws, including the Freedom of Information Act (FOIA). The question is whether these statutes ensure that environmental information is made available to the public in a timely and dependable way.

In theory, the answer is yes. These statutes appear to provide a comprehensive right of access to information generated by the federal government or acquired by the federal government from private parties and state and local governments. In practice, however, this net of government-information statutes provides what is at best a piecemeal and not entirely satisfactory pathway to needed environmental information and is at worst the illusion of a right of access where none exists. There are many reasons why the reality does not match the expectations.

Narrowing the Accountability Gap: Toward a New Foreign Investor Accountability Mechanism

by Natalie L. Bridgeman and David B. Hunter

I. Introduction

This Article addresses the "accountability gap" in foreign investment projects and proposes the creation of a Foreign Investor Accountability Mechanism (the Mechanism) to ensure that multinational enterprises (MNEs) may be held accountable to the social and environmental standards to which they have agreed.

MNEs have adopted an ever-increasing number of standards, guidelines, principles, norms, and best practices (hereinafter standards and norms) to address the environmental and social impacts of their investments. However, a number of barriers often prevent implementation of those standards and norms in the countries where these investments are located (host countries). Barriers include weak host country regulatory authority capacity, lack of political will, lack of leverage over violators, and corruption. In addition, investment treaties, host government agreements, foreign policy pressure from home country governments, and jurisdictional challenges may further weaken the ability of host countries to enforce laws, norms and standards. In home countries (generally speaking, the OECD countries where MNEs are headquartered), a similar gap exists, with limited remedies available for project-affected people and, where available, challenges in enforcement. Thus, MNEs operate in a "norm-rich" environment that lacks effective governance structures for monitoring or enforcing compliance with their commitments.

Developing a Comprehensive Approach to Climate Change Mitigation Policy in the United States: Integrating Levels of Government and Economic Sectors

by Thomas D. Peterson, Robert B. McKinstry, Jr., and John C. Dernbach

Over the past several years the issue of global warming has become a national political priority and will likely remain one of the United States' and the world's most pressing and unresolved policy issues for many years. The U.S. Supreme Court's decision in Massachusetts v. EPA makes possible a national program to address climate change under the Clean Air Act (CAA). Even before Massachusetts v. EPA, the congressional shift in power had produced a flurry of bills coalescing around the need for strong national goals and mandatory GHG emissions reductions. While many of the bills before Congress in past sessions moved toward stronger emissions reduction goals and potentially broader and more inclusive policy approaches, they were relatively silent or short on details for the specific pathways necessary to achieve climate stabilization goals.

Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future

by J.B. Ruhl

I. Introduction

The pika is toast. More specifically, the American pika (Ochotona princeps) is running out of places to live, and global climate change appears to be the primary cause of its decline. This tiny rabbit-like species has the unfortunate trait of being remarkably well-adapted to the cold, high-altitude, montane habitat of the Sierra Nevada and Rocky Mountain ranges in the North American Great Basin. The pika's problem is that as global climate change causes surface temperatures to rise, the altitude below which pikas cannot find suitable conditions for survival also is rising.

The pika's recent decline and gloomy future call to mind the protective capacity of the Endangered Species Act (ESA), often referred to as the "pit bull" of environmental laws. The United States Fish & Wildlife Service (FWS), which administers the ESA for terrestrial and freshwater species, has identified over 1250 animal and plant species in the United States for protection and has exercised its regulatory authority throughout the nation to fulfill the statute's goal of conserving imperiled species. The ESA is credited with preventing the vast majority of protected species from ultimate extinction.

Addressing Climate Change With a Comprehensive U.S. Cap-and-Trade System

by Robert N. Stavins

I. Introduction

The impetus for a meaningful U.S. climate policy is growing. Scientific evidence has increased (Intergovernmental Panel on Climate Change, 2007a, b), public concern has been magnified, and many people perceive what they believe to be evidence of climate change in progress. Such concern is reinforced by the aggressive positions of key advocacy groups, which are no longer limited on this issue to the usual environmental interest groups; religious lobbies, for example, have also been vocal. This has been reflected in greatly heightened attention by the news media. The overall result is that a large and growing share of the U.S. population now believes that government action is warranted (Bannon et al., 2007).

In the absence of federal policy, regions, states, and even cities have moved forward with their own proposals for policies intended to reduce the emissions of carbon dioxide (CO2)and other greenhouse gases. Partly in response to fears of a fractured set of regional policies, an increasing number of large corporations, sometimes acting individually, and at other times in coalitions--together with environmental advocacy groups--have announced their support for serious national action. Building upon this is the April 2007 U.S. Supreme Court decision that the Administration has the legislative authority to regulate CO emissions, as well as ongoing pressure from European and other nations for the United States to re-establish its international credibility in this realm by enacting a meaningful domestic climate policy.

Size Matters: Regulating Nanotechnology

by Albert C. Lin

Nanomaterials and products containing nanomaterials are quickly being integrated into a wide range of commercial and noncommercial applications. As nanomaterials grow more commonplace, we are coming in contact with these substances on an increasingly regular basis, in products ranging from stain-resistant khaki pants to sunscreens. Despite the expanding use of nanomaterials, relatively little is known about the possible harm they could pose. Current forms of government regulation are proving inadequate in addressing this potential harm. Therefore, it is imperative that new mechanisms be developed to learn more about these new substances, while protecting against the unknown risks they present to society.

Nanotechnology is the term used to describe the burgeoning field of manipulating matter at a nanometer scale. Engineered nanomaterials are derived from conventional chemical substances, but have unique characteristics and surface coatings that often lead them to behave very differently. The small size and high surface-area-to-mass ratio of nanosized particles enhance the mechanical, electrical, optical, catalytic, and/or biological activity of a substance. This unusual behavior, however, along with known hazards presented by naturally occurring particles of somewhat similar size, has caused concern over the effects that nanomaterials could have on human health and the environment. Free nanoparticles that may be released into the environment, whether intentionally or incidentally as a product is used, are of particular concern. These substances are believed to be the most likely to be able to enter the body, react with cells, and cause tissue damage. There is very little data on harmful effects from real world exposure to engineered nanoparticles, but this uncertainty should not be used as an excuse for regulatory inaction.

Using Competition-Based Regulation to Bridge the Toxics Data Gap

by Wendy Wagner

A person unfamiliar with the intricacies of chemical regulation in the United States might assume that regulators are hard at work weeding out dangerous products, requiring warnings on thousands of others, and collecting copious toxicity research on the rest. In truth, however, the regulatory regime in the United States works nothing like this. There is little information available to regulators for evaluating the possible hazards of chemicals, and even for the limited research that does exist, some unspecified portion of the scientific studies is at risk of being biased or otherwise unreliable. Moreover, since the U.S. Environmental Protection Agency (EPA) focuses most of its firepower on regulating individual chemical substances rather than chemical mixtures, consumers have little notion of the comparative toxicity of the chemical products on the market and lack adequate instructions regarding their proper use. There is simply no way to sugarcoat the ugly truth: chemical regulation in the United States has been a dismal failure.

The basic structure of the law governing toxic substances--the Toxic Substances Control Act (TSCA) -- deserves much of the blame for this regulatory dysfunction. In the regulation of chemicals, manufacturers are not required to do any testing unless commanded by EPA, and EPA must justify its demand with some scientific evidence. Due in part to this formidable burden, in the nearly thirty years of its regulatory authority, EPA has issued testing mandates for fewer than 200 chemicals. Most of the remaining chemicals, which include approximately 83, individual chemical substances, are effectively unrestricted and often unreviewed with regard to their health and environmental impacts. Even when there is considerable information indicating that a chemical is unsafe, as there was in the case of asbestos, EPA still must engage in a long and difficult regulatory struggle before imposing the "death penalty" on the hazardous chemical.


Comment on Information Access--Surveying the Current Legal Landscape of Federal Right-to-Know Laws

by Mark Cohen

Prof. David Vladeck's article, Information Access--Surveying the Current Legal Landscape of Federal Right-toKnow Laws, provides a powerful case for strengthening existing environmental right-to-know laws such as the Freedom of Information Act (FOIA) and other enabling statues that require firms to report--and the government to provide public access to--environmental information. He focuses on two examples where almost by default, due to procedural burdens and the ability to claim proprietary business information, the government can withhold and/or delay release of data. Instead of focusing on the legal aspects of right-to-know laws, this brief comment argues that information provides an important social value--but one that must be weighed against the potential costs of information provision. Clearly identifying these costs and benefits helps to shed light on the appropriate legal thresholds for disclosure.

The costs of disclosure are well articulated by both firms and government regulators. From a company's perspective, there is both the physical cost of disclosure (e.g. filling out Toxics Release Inventory reports) and the potential cost of losing proprietary information. The first cost is not particularly relevant to Vladeck's article, since he focuses primarily on data that has already been provided to the government or information that the government itself has either collected or generated. Certainly, the issue of firm proprietary data needs to be taken seriously--but it is also one that can be dealt with through judicial oversight without much difficulty. Courts know how to weigh the private interest of proprietary information against the public interest of disclosure. Even if there is a legitimate concern about proprietary data being released, if the potential social benefit is high enough that disclosure is warranted, adequate safeguards can often be provided so that the data can be selectively disclosed without fear disclosure to a competitor.

Comment on Information Access--Surveying the Current Legal Landscape of Federal Right-to-Know Laws

by Gary D. Bass & Sean Moulton

Openness is an American bedrock principle, with secrecy being disdained except where absolutely necessary. As former Sen. Daniel Patrick Moynihan (D-N.Y.) said, "Secrecy is for losers." If information is the lifeblood of democracy, then public access to information would be the arteries that keep democracy healthy. Yet, despite the clear importance of transparency to an effective and accountable government, we continue to fall short of the openness we need and have often been promised. David Vladeck's article, Information Access--Surveying the Current Legal Landscape of Federal Right-to-Know Laws, lays out a clear case for how and why our federal efforts to establish the public's right to information, especially environmental information, have not yet succeeded and what next steps would be most helpful in correcting that failure.

We as a nation have made repeated attempts to make our government open and accountable to the people. And while progress has been made, in some areas more progress than others, we continue to struggle with the responsibilities of our often longstanding right-to-know laws, such as the Freedom of Information Act (FOIA) and the Federal Advisory Committee Act (FACA). Vladeck appropriately spreads the blame for these shortcomings across all three branches of government. Congress' right-to-know laws have become outdated and fail to keep pace with the reality of what can and should be accomplished in the Internet age. Executive agencies, fearing criticism and oversight of their actions, continue to be resistant to transparency, causing excessive delays and often requiring those seeking information to go the expensive route of hiring a lawyer and going to court. And the courts have often, though not always, acted with excessive deference to the federal government.

Comment on Developing a Comprehensive Approach to Climate Change Mitigation Policy in the United States: Integrating Levels of Government and Economic Sectors

by Robert D. Brenner & Anna Marie Wood

In the article Developing a Comprehensive Approach to Climate Change Mitigation Policy in the United States: Integrating Levels of Government and Economic Sectors, Peterson, McKinstry, and Dernbach demonstrate the importance of a comprehensive approach to climate change policy in the United States. The article notes that climate change legislation proposed thus far fails to integrate state and local climate change programs with national and international efforts. The authors also assert that the proposals do not ensure integration across all economic sectors of the full range of measures and programs needed to achieve significant greenhouse gas (GHG) reductions. The authors suggest that, either through federal legislation or rulemaking, a comprehensive approach should be established to address governance issues and signal an effective commitment by the United States to address climate change.

The authors propose an approach to address this shortcoming using a combination of elements under the Clean Air Act (CAA), the most significant of which include: (1) the establishment of a national ambient air quality standard (NAAQS) for greenhouse gasses with short, intermediate and long term reduction goals implemented through state implementation plans (SIPs); (2) national and regional performance or technology based standards and cap-and-trade programs for some sectors; and (3) SIPs that include measures necessary to achieve additional GHG reductions.

Between the time the authors wrote their article and the publication of this comment, much has changed in a relatively short time period. In July, EPA issued an advanced notice of proposed rulemaking concerning the regulation of greenhouse gas emissions under the CAA (ANPR). The ANPR examined and solicited public comment on the CAA provisions that could be used to reduce emissions of GHGs, and the interconnection among these authorities. Then, in November, the presidential election led to a change in political leadership in the United States.